ISIDRO T

ISIDRO T. PAJARILLAGA, petitioner vs. COURT OF APPEALS and THOMAS T. KALANGEG, respondents

Nature of Action: Petition for review on certiorari

Facts:

1. Private respondent Thomas T. Kalangeg filed with the RTC of Bontoc,Mt.Province, Branch 36, a complaint for a sum of money with damages against petitioner Isidro T. Pajarillaga.

2. On March 10, 1997, private respondent presented his first witness. At the next scheduled hearing on August 8, 1997, neither petitioner nor his counsel appeared despite notice. Upon private respondents motion, the trial court allowed him to present his remaining two witnesses subject to petitioners cross-examination on the next scheduled hearing on September 2, 1997. But when the case was called on that date, petitioner and his counsel were again absent. Upon private respondents motion, the trial court declared petitioner to have waived his right of cross-examination and allowed private respondent to make a formal offer of evidence, which the trial court admitted.3. The trial court scheduled petitioners presentation of evidence but the petitioner moved to reset the hearing. The TC granted the motion.4. Five days before the scheduled hearing, the petitioner filed a Motion for Leave of Court to Take the Deposition of the Defendant Upon Written Interrogatoriesa. Petitioner resides in Manila which is more than four hundred (400) kilometers from Bontoc, Mt.Province;

b. Petitioner is suffering from an illness which prohibits him from doing strenuous activities.

5. Private respondent opposed the motion.

6. On December 15, 1997, neither petitioner nor his counsel again appeared. Nonetheless, the trial court reset the case to January 12, 1998 for the presentation of petitioners evidence.

7. In an Order dated January 29, 1998, the trial court denied petitioners motion. Petitioners MR: denied.

8. CA affirmed.

a. Denial of petitioners motion was not tainted with grave abuse of discretion since the trial court gave petitioner full opportunity to present his evidence.

b. Petitioners motion came much too late in the proceedings since private respondent has already rested his case

c. The medical certificate which petitioner submitted to validate his allegation of illness merely contained a remark that the patient is advised to avoid strenuous activity. It did not state that the travel from Manila to Mt. Province for the scheduled hearings was too strenuous to endanger petitioners health.

d. The threats to petitioners life by private respondents relatives were belatedly alleged only in his motion for reconsideration.

Issue: Whether the taking of petitioners deposition by written interrogatories is proper and should have been granted by the court.Held: NO

Petitioners arguments: (a) This discovery measure may be availed of by a party as a matter of right; (b) has good reasons for invoking his right to this discovery measure,i.e., he resides in Manila which is more than four hundred (400) kilometers from Bontoc, Mt. Province (c) he is suffering from an illness which prohibits him from doing strenuous activities; (d) there are seriousthreats to his life by private respondents relatives.

Respondents answer: (a) petitioner could no longer avail of this discovery measure since the trial court has already given him sufficient time to present his evidence and yet he failed to do so; (b) petitioners motion was made purposely to further delay the resolution of the case as it was invoked during the late stage of the proceedings; (c) the medical certificate submitted to show petitioners illness does not contain any statement that he could not travel fromManilatoMt.Provincefor the scheduled hearings.

1. Deposition is chiefly a mode of discovery, the primary function of which is to supplement the pleadings for the purpose of disclosing the real points of dispute between the parties and affording an adequate factual basis during the preparation for trial. It should be allowed absent any showing that taking it would prejudice any party. It is accorded a broad and liberal treatment and the liberty of a party to make discovery is well-nigh unrestricted if the matters inquired into are otherwise relevant and not privileged, and the inquiry is made in good faith and within the bounds of law. It is allowed as a departure from the accepted and usual judicial proceedings of examining witnesses in open court where their demeanor could be observed by the trial judge, consistent with the principle of promoting just, speedy and inexpensive disposition of every action and proceeding; and provided it is taken in accordance with the provisions of the Rules of Court,i.e., with leave of court if summons have been served, and without such leave if an answer has been submitted; and provided further that a circumstance for its admissibility exists.2. There is nothing in the Rules of Court or in jurisprudence which restricts a deposition to the sole function of being a mode of discovery before trial. Under certain conditions and for certain limited purposes, it may be taken even after trial has commenced and may be used without the deponent being actually called to the witness stand. There is no rule that limits deposition-taking only to the period of pre-trial or before it; no prohibition exists against the taking of depositions after pre-trial. There can be no valid objection to allowing them during the process of executing final and executory judgments, when the material issues of fact have become numerous or complicated.

3. There is really nothing objectionable,perse,with petitioner availing of this discovery measure after private respondent has rested his case and prior to petitioners presentation of evidence. To reiterate, depositions may be taken at any time after the institution of any action, whenever necessary or convenient.

4. But when viewedvisthe several postponements made by petitioner for the initial presentation of his evidence,his timing is suspect.

5. The records show that petitioner stopped attending the hearings after private respondent presented his first witness.

6. Petitioner offered no excuse for his and his counsels absences. Moreover, the trial court has set four (4) hearing dates for the initial presentation of his evidence. But he merely moved for its resetting without invoking the grounds.

7. Petitioner has not sufficiently shown anexceptional or unusual case for us to grant leave and reverse the trial and appellate courts.

a. Under Section 4, Rule 23 of the Rules of Court, depositions may be used for the trial or for the hearing of a motion or an interlocutory proceeding, under the following i. (c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:(1) that the witness is dead; or (2) that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.8. Petitioner invokes distance and illness to avail of the discovery measure but the matter of distance could have been settled had petitioner requested for a change of venue earlier in the proceedings. Petitioner has attended the pre-trial and the hearing where private respondent presented his first witness. He need not await his turn to present evidence before realizing the great inconvenience caused by the enormous distance between his place of residence and the place of hearing.9. Petitioners claim of illness: the medical certificate submitted by petitioner merely contained a remark that the patient is advised to avoid strenuous activity. It was not alleged that the travel from Manila to Mt. Province for the scheduled hearings was too strenuous to endanger petitioners health.10. The threats to petitioners life by private respondents relatives appear to be a mere afterthought since it was raised only in petitioners motion for reconsideration of the trial courts denial of his motion for leave. We also note that the incident which gave rise to the alleged threats took place prior to the pre-trial. Surely, petitioner could have informed the trial court of this incident had there been truth to, and serious implication of, his allegation.11. While the rules on discovery are liberally constructed so as to ascertain truth and to expedite the disposal of cases, the trial court may disallow a deposition if there are valid reasons for so ruling.12. There is delay in the litigation at petitioners instance coupled with the belated and unsubstantiated allegations of illness and threats to petitioners life, more than sufficient reasons for the trial court to deny petitioners motion.